The Color of Law
Are Corporations People Who Kill People?
By David A. Love, JD - BlackCommentator.com Executive
Editor
BC
March 1, 2012
http://www.blackcommentator.com/461/461_col_corporations.php
Can corporations be sued in U.S. courts for violations
of international human rights law? This week, the U.S.
Supreme Court is hearing a case that may have a
profound impact on corporate accountability and human
rights in this country.
The case is Kiobel v. Royal Dutch Petroleum Co., and
the plaintiffs allege that Shell Oil was complicit in
human rights abuses in the Ogoni region of Nigeria.
Specially, they say that the oil giant worked with that
country's then-military dictatorship in the early 90s
to detain, torture and, by way of a trial in a kangaroo
court, executed nine Ogoni activists who protested the
company's desecration of the Niger River delta.
The plaintiffs invoke the Alien Tort Statute of 1789
(ATS), which allows foreigners that do business in the
U.S. to be held accountable for international human
rights crimes they commit in other countries.
Plaintiffs in the companion case, Mohammad v.
Palestinian Authority, have sued under the Torture
Victim Protection Act of 1991, which allows for civil
suits in the U.S. for torture and extrajudicial
killings committed by officials in a foreign nation.
Kiobel brings together the subject of the rape of
Africa and its people with and notions of corporate
personhood. On the one hand, it seems fitting that a
seminal human rights case would implicate brutal,
corrupt Third World dictators and their corporate
puppet masters. The whole thing conjures up images from
one of the late Fela Kuti's songs, "I.T.T.," which
stands for "International Thief Thief." "Many foreign
companies dey Africa carry all our money go," Fela
said:
Them go dey cause confusion (Confusion!)
Cause corruption (Corruption!)
Cause oppression (Oppression!)
Cause inflation (Inflation!)
Oppression, oppression, inflation
Corruption, oppression, inflation
Them get one style wey them dey use
Them go pick one African man
A man with low mentality
Them go give am million naira breads
To become of high position here
Him go bribe some thousand naira bread
To become one useless chief
Corporations ruin the land, wreck the environment and
prop up petty dictators that will allow them to do it.
And people of the developing world are exploited and
murdered in the process. On the other hand, while
corporations want us to believe that they are people
too, they don't want any of the responsibilities that
come with it. The Supreme Court has come out in favor
of corporate personhood. Moreover, the Citizens United
decision has sanctioned the corruption of democracy and
the buying of elections by the 1 percent of the 1
percent - the wealthy few running roughshod over the
rights of the many, all in the name of so-called free
speech.
The lower court in Kiobel sided with Big Oil. Opponents
of corporate liability claim that this Alien Tort
Statute case will drive corporations from less
developed countries, make American businesses
uncompetitive because their competitors are beyond the
reach of the law, and deter foreign investment in the
U.S. by corporations that want to avoid U.S. courts.
"Holding corporations liable for human rights
violations is fully consistent with international law.
At the heart of this case is the value we attach to the
idea of the rule of law, an idea expressed in the
following simple statement: `Be you never so high, the
law is above you.'" said Navi Pillay, UN High
Commissioner for Human Rights in an amicus brief to the
high court in this case.
"The battle for subjecting human rights violators to
the rule of international law has been fought and won
against natural persons, groups, organizations and
States. On a proper understanding of contemporary
international law, corporations are also subject to the
rule of law on the international plane, in which they
ubiquitously operate. Under that law, they are
accountable for human rights violations. In particular,
corporations are not immune from responsibility under
international law if they engage in, or are complicit
in, conduct amounting to international crimes such as
genocide, crimes against humanity or war crimes,"
Pillay added.
According to Columbia University economist Joseph
Stiglitz, recognizing corporate liability under the
Alien Tort Statute is a matter of economic efficiency.
"[I]t is now well-recognized that in a modern economy,
the provision of appropriate incentives (to avoid
injury to others) must extend beyond the imposition of
liability to the person who commits the injury. In
particular, corporations must be provided with
incentives to discourage and deter their employees from
engaging in such potentially harmful acts and to
develop monitoring systems that ensure compliance with
corporate policies."
Stiglitz argues that corporations are best situated to
effectively monitor harmful activity at a minimal cost.
Further, given the limited resources of individual
persons as opposed to their corporate employers, a
system that imposes liability solely on individuals
would be weak and ineffective.
"Furthermore, recognition of corporate liability would
demonstrate commitment to a variety of widely shared
principles and morals," Stiglitz adds. "The liability
imposed by the ATS reflects norms of human rights
endorsed by international law. The United States
values, and benefits from, the existence of such
international norms. And the enforcement of these norms
by the United States confirms and promotes their
universality."
For an often outdated U.S. Constitution which grants
rights only sparingly - and has fallen out of favor in
the world as a casualty to far superior human rights
documents in Canada, South Africa and elsewhere - the
Alien Tort Statute may well prove our saving grace.
When corporations violate the laws of nations by
torturing and killing people, the U.S provides a human
rights mechanism to address it. But whether a
corporation-friendly majority on the Supreme Court sees
things the same way, well, that remains to be seen.
_______________
BlackCommentator.com Executive Editor, David A. Love,
JD is a journalist and human rights advocate based in
Philadelphia, is a graduate of Harvard College and the
University of Pennsylvania Law School. and a
contributor to The Huffington Post, the Grio, The
Progressive Media Project, McClatchy-Tribune News
Service, In These Times and Philadelphia Independent
Media Center. He also blogs at davidalove.com, NewsOne,
Daily Kos, and Open Salon.
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